Employers Must Bolster Their Policies Against Retaliation

Last month, we said that heightened awareness is necessary after the Supreme Court ruling in CBOCS West, Inc. v. Humphries, 128 S. Ct. 1951 (2008) increased the stakes. We said that employers must now revisit and reinvigorate their policies and practices to minimize the risks of exposure to retaliation claims.

Our discussion concludes herein with a look at the mechanics of an investigation.

Recommendations for Employers

Conduct a Well-Structured, Expeditious and Effective
Investigation of Any Claims of Alleged Retaliation

In choosing the managers who will investigate the allegations, the company should focus on effectiveness and on avoiding future allegations of a tainted investigation. For example, it may be prudent not to use the same persons who investigated the employee's earlier complaints of discrimination.

Those chosen to investigate must, at the outset, carefully structure their investigation to address a number of concerns. The most important goal is, of course, to determine whether retaliation has occurred and, if so, how to remedy the damage and discipline the offender. Other goals include protecting confidentiality, demonstrating the employer's sincere commitment to opposing retaliation, and protecting attorney-client communications or attorney work-product from future disclosure.

As to the mechanics of the investigation, attention should always be paid to maintaining confidentiality. The complaining employee and other interviewees are less likely to complain internally if they see that their statements are revealed to anyone other than those who need to know. Employers of course prefer to resolve allegations internally, before the complainant involves the government or an attorney. It is also prudent to minimize the number of managers who become aware of the employee's allegations, without sacrificing the investigation's effectiveness. Managers who are not aware of an employee's complaints can hardly be accused of retaliation when they later make decisions adverse to that employee. Anyone who is interviewed should be reminded of the retaliation prohibition and how he or she can report perceived retaliation.

Create a Process for Managers to Review Any Adverse Employment Decision Involving an Employee Who Has Engaged in Protected Conduct, Before That Decision Is Implemented

As with any employment decision that implicates legal rights, the company needs to assure that the contemplated adverse action is supported, adequately documented, and proportionate to the employee misconduct or performance problems involved. The review can protect the company from the kinds of fact situations that, in later litigation, haunt even the best-intentioned employers. For example, a competent reviewer will ask: Are there objective facts unrelated to the employee's protected conduct that support adverse action due to the employee's “bad attitude” or “negativity”? How does the decision-maker explain holding the employee accountable now for behaviors that had been condoned or ignored in the past? Is there justification for deviating from established policies and procedures in this case and, if not, how can the company cure the deviation?

Management review before a decision is implemented can also confirm that all options have been considered. Managers who are not involved in the day-to-day supervision of a problem employee often can suggest less severe alternatives to the proposed discipline. Simply delaying the adverse action can position an employer better in later litigation. The review can assure that managers have not made an adverse employment decision based solely on input from the person whom the employee accused of discrimination. “Untainted” managers must corroborate that input to assure its validity and support.

Conclusion

By following these recommendations, employers can minimize their exposure to retaliation claims, including high-stakes Section 1981 claims that the Supreme Court sanctioned in Humphries. More than ever, it is critical that employers take proactive measures to protect themselves against the impending increase in complaints.

Scott E. Gross is a litigator in the Chicago-based firm of Wildman, Harrold, Allen & Dixon LLP. He specializes in all aspects of labor and employment law.

Last month, we said that heightened awareness is necessary after the Supreme Court ruling in CBOCS West, Inc. v. Humphries , 128 S. Ct. 1951 (2008) increased the stakes. We said that employers must now revisit and reinvigorate their policies and practices to minimize the risks of exposure to retaliation claims.

Our discussion concludes herein with a look at the mechanics of an investigation.

Recommendations for Employers

Conduct a Well-Structured, Expeditious and Effective
Investigation of Any Claims of Alleged Retaliation

In choosing the managers who will investigate the allegations, the company should focus on effectiveness and on avoiding future allegations of a tainted investigation. For example, it may be prudent not to use the same persons who investigated the employee's earlier complaints of discrimination.

Those chosen to investigate must, at the outset, carefully structure their investigation to address a number of concerns. The most important goal is, of course, to determine whether retaliation has occurred and, if so, how to remedy the damage and discipline the offender. Other goals include protecting confidentiality, demonstrating the employer's sincere commitment to opposing retaliation, and protecting attorney-client communications or attorney work-product from future disclosure.

As to the mechanics of the investigation, attention should always be paid to maintaining confidentiality. The complaining employee and other interviewees are less likely to complain internally if they see that their statements are revealed to anyone other than those who need to know. Employers of course prefer to resolve allegations internally, before the complainant involves the government or an attorney. It is also prudent to minimize the number of managers who become aware of the employee's allegations, without sacrificing the investigation's effectiveness. Managers who are not aware of an employee's complaints can hardly be accused of retaliation when they later make decisions adverse to that employee. Anyone who is interviewed should be reminded of the retaliation prohibition and how he or she can report perceived retaliation.

Create a Process for Managers to Review Any Adverse Employment Decision Involving an Employee Who Has Engaged in Protected Conduct, Before That Decision Is Implemented

As with any employment decision that implicates legal rights, the company needs to assure that the contemplated adverse action is supported, adequately documented, and proportionate to the employee misconduct or performance problems involved. The review can protect the company from the kinds of fact situations that, in later litigation, haunt even the best-intentioned employers. For example, a competent reviewer will ask: Are there objective facts unrelated to the employee's protected conduct that support adverse action due to the employee's “bad attitude” or “negativity”? How does the decision-maker explain holding the employee accountable now for behaviors that had been condoned or ignored in the past? Is there justification for deviating from established policies and procedures in this case and, if not, how can the company cure the deviation?

Management review before a decision is implemented can also confirm that all options have been considered. Managers who are not involved in the day-to-day supervision of a problem employee often can suggest less severe alternatives to the proposed discipline. Simply delaying the adverse action can position an employer better in later litigation. The review can assure that managers have not made an adverse employment decision based solely on input from the person whom the employee accused of discrimination. “Untainted” managers must corroborate that input to assure its validity and support.

Conclusion

By following these recommendations, employers can minimize their exposure to retaliation claims, including high-stakes Section 1981 claims that the Supreme Court sanctioned in Humphries. More than ever, it is critical that employers take proactive measures to protect themselves against the impending increase in complaints.

Scott E. Gross is a litigator in the Chicago-based firm of Wildman, Harrold, Allen & Dixon LLP. He specializes in all aspects of labor and employment law.